I have written on the topic of your digital estate in the past, but given the interest and posts from #RootsTech 2014, I guess it is time to go another round with problems and issues presented by digital assets.

My first reaction to all this about planning for your digital death is similar to my reaction to insurance salesmen and financial planners. They both make money by telling you that you need their services when you know that they will benefit from your "investment" or "purchase." The key to this whole issue is the statement made by the FamilySearch blog post by Lynn Broderick linked above. The post says,

Currently, less than half of states within the United States have digital asset laws established; some are just propositions and at least one law only provides partial coverage. Connecticut state law only governs the decedent’s email.

Whatever you have to say about this issue makes little or no sense without some sort of legal underpinnings that support all the platitudes. The key here and likely the reason why there is no legislation is simple: digital assets are assets. There is no need for special legislation just because someone has come up with new junk or stuff. The legal underpinnings are already well established and have been since antiquity. We do not have to reinvent the law every time there is a new gadget or whatever.

Here is the legal fact of death. When you die, any property you own and not previously transferred to someone or some other entity such as a Trust, becomes part of your "estate." Despite the innovative nature of digital possessions or assets, after all is said and done, they are just assets to a court. Just like real estate, cars, TVs or anything else. The main legal issues are notice to the heirs of the existence of these online assets and valuation. For all the sentimental value of a pile of photographs online or otherwise, unless someone can put a monetary value on the collection, the court (and probate law in general) could care less. It seems to me that absent some demonstrable value in the form of spendable cash, no one will ever take the assets serious. This is not to say that I haven't stood in court and argued over photo albums. Even with no monetary value, the sentimental value can be enormous.

OK, now this is the attitude of an old cranky attorney, but in the real world of genealogy, these online assets may be priceless. As I have written before, if we have an "estate plan" that includes a Trust, all that is really necessary is to provide the potential Trustee with access to the "online assets" in the form of passwords and logins. The Trust document likely already has some pour-over provisions saying that all the other and sundry property owned by the deceased is given to the Trust. There is really no need for special legislation or anything of that nature. Assets are assets. Even if the online assets only have sentimental value, they are still assets and fall into the same category as a lawnmower or a can of beans.

Basically, the issue revolves around the perception of the Trustee of the value of the online stuff. As with anything we really care about, it is good idea to take care of it before we die. Unfortunately, many people have a problem with this and are in denial about the need for "estate planning." I refer to a lot of this as junk planning. The question is who want your junk? After participating in a myriad of estates over the years, I have first hand experience with heirs and Trustees who throw everything in the dumpster.

In reading through the suggestions in the FamilySearch post, my opinion is that all of that is just fine if it make you feel better but there is no guarantee that the Trustee of your Trust or the Administrator (Personal Representative) of your estate will do any of the things you plan.

My point is this: take care of disposing, donating, archiving, transferring etc. before you pass on. Even if laws are passed that "take care of your digital estate" in the real world of law unless there is an actual perceived monetary value, no one will care including a judge. Laws or no laws. As long as there are lawyers like me who think of all this stuff as stuff, the law can't really do much to change what will happen.

Afterthought: Don't put your computer illiterate (or terminally stupid) heir in charge of your Trust and your digital estate if you really want anything done. Be sure the person you nominate has some computer and network savvy or the sense to hire someone who does. P.S Make sure your Trustee or Administrator doesn't tell the world through Facebook that you died until all of the online assets are secured. P.P.S. Don't you tell everyone you died through a post-mortem announcement until everything is taken care of.

1 comment:

Interestingly, if your "digital estate" included bitcoin investments then you can bet your bottom dollar that the legal side would not be in doubt. :-)

I agree that all digital assets should be covered by existing law, but the logistics of passing it on are still a mess (accounts, passwords, etc). It's caused me to think about my other areas such as copyright, registered trademarks, patents, etc.